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I. EC Maritime Transport Law and Policy

Published online by Cambridge University Press:  17 January 2008

Joe McMahon  and
Rosa Greaves
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Extract

The EC maritime transport policy was slow to develop. Although the EC Treaty requires the Member States to create a Common Transport Policy,1 the focus of the Treaty transport provisions2 is on inland modes of transport (road, rail and inland waterways).3 However, the EU Council is expressly given competence to decide what ‘appropriate provisions’ may be adopted for maritime and air transport.4

Maritime transport is by its very nature an international mode of transport regulated by a large number of international treaties and conventions, most of them negotiated and concluded within the International Maritime Organization (IMO). Members of the international community, including some EU Member States themselves, were initially reluctant to transfer their sovereignty in this field of transport to the Community. However, two main events gradually changed the attitude of the Member States to the Community's competence to regulate this mode of transport. First, the mid-1980s impetus to establish an internal market by 1992 placed all modes of transport at the centre of the project. It was not feasible to establish a geographical market, stretching from the Atlantic to the Eastern European countries and from the North Sea to the Mediterranean, where goods, people, services and capital would be able to circulate freely,5 and in a competitive manner, without the Community seriously addressing transport issues. Thus, unsurprisingly, a number of important legislative proposals affecting the provisions of maritime transport services were adopted and implemented during that period.6 The second significant factor in the development of a maritime transport policy was the number of serious marine accidents which took place in the Community's coastal waters during the last 20 years.7

Type
Current Developments: European Union Law
Information
International & Comparative Law Quarterly , Volume 56 , Issue 2 , April 2007 , pp. 415 - 421
Copyright
Copyright © British Institute of International and Comparative Law 2007

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References

1 Art 3(f) EC Treaty.Google Scholar

2 Arts 70–80, Title V EC Treaty.

3 Art 80(1) EC Treaty.

4 Art 80(2) EC Treaty.

5 These are known as ‘the four fundamental freedoms’ upon which the European Economic Community was established in the Treaty of Rome, 1957.Google Scholar

6 eg Regulation 4055/86, OJ 1986 L378/1, applying the principle of freedom to provide services to sea transport.Google Scholar

7 Herald of Free Enterprise, 1987Google Scholar; Exxon Valdez, 1989Google Scholar; Scandinavian Star, 1990Google Scholar; Agean Sea, 12 1992Google Scholar; Braer, 01 1993Google Scholar; Estonia, 1994Google Scholar; Erika, 12 1999Google Scholar; Express Samina, 09 2000Google Scholar; Prestige, 11 2002.Google Scholar

8 Art 81 EC prohibits agreements, decisions or concerted practices between undertakings which have the object or effect of preventing, restricting or distorting competition and affecting trade between Member States. Art 82 EC complements Art 81 by prohibiting any abuse by an undertaking of a dominant position within the common market or in a substantial part of it insofar as it may affect trade between Member States.

9 Case 156/77 Commission v Belgium [1978] ECR 1881.Google Scholar

10 Regulation 4056/86 laying down detailed rules for the application of Arts [81] and [82] of the Treaty to maritime transport, OJ 1986 L378/4Google Scholar, repealed by Regulation 1419/2006. OJ 2006 L269/1.Google Scholar

11 OJ Sp Ed 1962, No 204/62, p 87.Google ScholarThis Regulation has been replaced by Regulation 1/2003.Google Scholar

12 Regulation 141 JO 1962, 2753.Google Scholar

13 Block exemption regulations permit agreements which comply with specified conditions and obligations to be protected from the prohibition of Art 81(1) EC Treaty.

14 Liner conferences are groups of shipping lines, cooperating on freight rates and making regular price agreements on freight rates in specific trade routes.

15 See Current Developments (2000) 49 ICLQ 227, 232–4Google Scholar and (2004) 53 ICLQ 465, 465–6.Google Scholar

16 OJ 2006 L269/1.Google Scholar

17 OJ 2003 L1/1, on the implementation of the rules of competition laid down in Arts 81 and 82 of the Treaty.Google Scholar

18 COM(93) 66 final.

19 A comprehensive review of the Community's maritime law and policy can be found in chapters 5 and 6 of EU Maritime Safety Policy and International Law by Henrik Ringbom due to be published at the end of 2007.

20 For a long time the Member States themselves objected to safety issues becoming part of the Community's maritime transport policy. Safety at sea was traditionally a matter for the Member States to exercise their sovereignty by participating in the international conventions promoted by the IMO. The change in direction was primarily the result of two major oil pollution accidents in European waters: the Agean Sea (12 1992)Google Scholar and the Braer (01 1993).Google Scholar

21 Directive 98/18 OJ 1998 L144/1Google Scholar (as amended) and Directive 95/21, OJ 1995 L157/1 (as amended).Google Scholar

22 Directive 94/57, OJ 1994 L319/20 (as amended)Google Scholar

23 Directive 97/70, OJ 1997 L34/1 (as amended)Google Scholar

24 Regulation 3051/95, OJ 1995 L320/14 (as amended).Google Scholar

25 Directive 2001/25, OJ 2001 L136/17 (as amended).Google Scholar

26 eg Directive 95/21 OJ 1995 L157/1 (as amended) concerning the enforcement, in respect of shipping using Community ports and sailing in waters under the jurisdiction of the Member Sates, of international standards for ship safety, pollution prevention and shipboard living and working conditions.Google Scholar

27 The Erika I package adopted by the Commission in March 2000, just three months after the Erika accident resulted in the adoption of the following measures: Directive 2001/106, OJ 2001 L19/17Google Scholar which strengthens the existing Port State Control Directive; Directive 2001/105, OJ 2001 L19/9Google Scholar, which strengthens the existing Classification Societies Directive; and Regulation 417/2002, OJ 2002 L64/1Google Scholar, which sets up a timetable for phasing out single-hull oil tankers world- wide. The Erika II package of measures was aimed at improving maritime safety in EU waters. The following measures were adopted: Regulation 1406/2002, OJ 2002 L208/1Google Scholar, establishing a European Maritime Safety Agency responsible for improving enforcement of the EU rules on maritime safety and Directive 2002/59, OJ 2002 L208/10Google Scholar establishing a Community vessel traffic monitoring and information system. In addition the Commission had proposed schemes to improve compensation for victims of oil pollution but the Member States preferred to have this matter dealt with at international level and referred the discussion to the IMO.

28 See (n 7).

29 OJ 2003 L249/1Google Scholar; OJ 2002 L64/1.Google Scholar

30 OJ 2005 L191/59.Google ScholarIn addition the Community has also adopted Directive 2005/33.Google ScholarOJ 2005 L191/59Google Scholar regulating the sulphur content in ships' fuels.

31 OJ 2005 L255/164 to strengthen the criminal law framework for the enforcement of the law against ship-source pollution.Google Scholar

32 The 1973 International Convention for the Prevention of Pollution, modified by the 1978 Protocol.Google Scholar

33 A ruling from the European Court of Justice on the validity of these provisions is pending in Case C-308/06 Intertanko v Secretary of State for Transport OJ 2006 C261/9.Google Scholar

34 Directive 95/21 OJ 1995 L157/1Google Scholar (as subsequently amended); Directive 2002/59 OJ 2002 L208/10Google Scholar; and Directive 94/57 OJ 1994 L319/20 respectively.Google Scholar

35 COM(2005) 587 final and COM(2005) 588 final.

36 COM(2005) 586 final.Google Scholar

37 COM(2005) 592 final.Google Scholar

38 COM(2005) 593 final.Google Scholar

39 COM(2005) 585 final, p 5.Google Scholar

40 COM(2005) 586 final.Google Scholar

41 COM(2005) 592Google Scholar final proposing a regulation on the liability of carriers of passengers by sea and inland waterways in the event of accidents and COM(2005) 593 final proposing a directive on the civil liability and financial guarantees of shipowners.Google Scholar

42 COM(2005) 592 final.Google Scholar

43 COM(2006) 275 final entitled ‘Towards a Future Maritime Policy for the Union: A European Vision for the Oceans and Seas’.Google Scholar

44 This will include shipbuilding, tourism, fisheries, and ports.

45 COM(2005) 505 final establishing a Framework for Community Action in the field of Marine Environmental Policy. The proposal seeks to establish European marine regions on the basis of geographical and environmental criteria.Google Scholar

46 There is also evidence that the Community is willing to impose stricter standards than those agreed internationally. For example, Directive 2005/33 (OJ 2005 L191/59Google Scholar) regulating the sulphur content of ships' fuel provides also for fuel requirements in respect of passenger ships in regular traffic between Community ports which is not an international standard requirement.

47 The most striking example was the phasing-out of single hull oil tankers.